The Texas Right to Life legislative team attended a hearing before the U.S. Court of Appeals for the Fifth Circuit in Houston Monday morning regarding Texas’ ongoing efforts to strip Planned Parenthood of Medicaid reimbursement funding. The hearing comes on the heels of the Trump Administration announcing rules that could strip the abortion giant of Title X family planning funding. While ridding the abortion industry of Title X money is a welcome first step, the outcome of the Medicaid case before the Fifth Circuit is essential in cutting off the majority of the current taxpayer dollars flowing to Planned Parenthood.

A couple of weeks ago, President Trump announced the U.S. Department of Health and Human Services would reinstate a version of President Ronald Reagan’s Title X rule. The rules will require strict financial separation between facilities that provide or unsolicitedly refer for abortions and facilities that receive Title X funding.

The amount of Title X funding Planned Parenthood receives is miniscule in comparison to their Medicaid reimbursements, which equal roughly 85% of their government funding. Because Congress refuses to withhold Medicaid funding from the abortion industry, Texas and other states must take independent actions, which are being slowly litigated across the country.

Texas initially gave Planned Parenthood notice of their impending termination from Medicaid on October 19, 2015, before finally following through in late 2016. The termination was in response to unethical and unprofessional conduct from Planned Parenthood. The undercover Center for Medical Progress (CMP) videos exposed Planned Parenthood’s criminal practice of trafficking preborn babies’ body parts. Additionally, the State cited that Planned Parenthood had previously defrauded Texas of tens of millions of dollars by overbilling Medicaid patients.

Planned Parenthood immediately filed suit in the U.S. District Court for the Western District of Texas, where Judge Sam Sparks acquiesced by granting the preliminary injunction. Judge Sparks denied there being any evidence that Planned Parenthood engaged in criminal activity and therefore Texas could not disqualify the organization as a Medicaid provider. Texas Attorney General Ken Paxton immediately appealed Judge Sparks’ decision to the Fifth Circuit.

The three judge panel hearing the appeal for the Fifth Circuit consisted of Judges E. Grady Jolly, Edith Jones, and Catharina Haynes. Both Judge Jones and Judge Haynes have ruled favorably for Texas’ Pro-Life policies in the past. While they asked tough questions of both sides, they were particularly critical of the argument presented by Planned Parenthood. The Fifth Circuit judges focused the hearing on whether or not Texas (as opposed to a Federal District Judge) has the legal authority to determine whether Planned Parenthood disqualified themselves from the Medicaid program.

Judge Jones was poignant when she stated “states have leeway” in disqualifying unethical recipients of Medicaid reimbursements, because Medicaid is a partnership between the states and the Federal government. In response, Planned Parenthood cited other lawsuits keeping them from being disqualified from Medicaid reimbursements. Judge Jones differentiates the lawsuit in Texas by specifying that the lawsuits in other states were “very shallow cases, factually,” whereas Texas cited their documented reasons for kicking out the abortion business.

Planned Parenthood disputed the state’s accusation that they are guilty of unethical conduct. Judge Haynes asked their lawyer, “who should be making the factual determination?” In this case, Judge Sparks decided against the Texas Inspector General’s factual findings, but Judge Haynes indicated she believed Judge Sparks may have imposed too strict of a standard in his ruling by not showing deference towards the Texas agency tasked with distributing Medicaid funds and contracting with providers.

One of three outcomes can occur in the Fifth Circuit: the Judges can remand the case to Judge Sparks, where he will have to use a lower standard of review; they can affirm Judge Sparks’ preliminary injunction; or they can overturn Judge Sparks’ preliminary injunction. Texas Right to Life anticipates the first option, where Judge Sparks will have to use a standard more favorable for the State. However, if one of the two latter options occurs, the ruling will most likely get appealed to the Supreme Court or to the entire Fifth Circuit.

Regardless of the ruling, Texas Right to Life expects Planned Parenthood to draw out the lawsuit as long as possible to exhaust all options available before losing any taxpayer funding. The abortion giant’s business model revolves around selling elective abortions to women while receiving state and federal funding through reimbursements and grants for auxiliary services. Until US Congress strengthens federal law, states will need to continue to follow Texas’ lead on holding the abortion industry accountable for unethical and illegal activities that disqualify them from receiving Medicaid dollars. With a fair ruling, this lawsuit can pave the way for completely defunding the abortion industry.